The battle to reform 300-year-old copyright law for the digital age

The copyright industries have been blocking and undermining pro-user reforms for years.

The Internet is built on copying. That's true at a purely technical level: as packets of data move around the world, they are copied from network to network, and finally to the end-user's device. But it's also true in terms of how people use the Internet: they are constantly sending copies across the network, whether partial snippets or entire works. That's a big problem, because once a creation is in a fixed form, it is automatically subject to copyright, an intellectual monopoly that gives creators the power to prevent copies being made of their work. Quite simply, this situation ensures that almost everyone using the Internet is also breaking the law multiple times every day.

This is not a new observation. Back in 2007, the US law professor John Tehranian considered the liability incurred for completely banal Internet activities during the course of a day in his paper "Infringement Nation: Copyright Reform and the Law/Norm Gap." According to Tehranian, over the course of one day, his representative user "infringed the copyrights of twenty emails, three legal articles, an architectural rendering, a poem, five photographs, an animated character, a musical composition, a painting, and fifty notes and drawings. All told, he has committed at least eighty-three acts of infringement and faces liability in the amount of $12.45 million (to say nothing of potential criminal charges)." With a similar pattern of activity over a year, the liability would add up to several billion dollars.

Not all of those infringements were online, and the calculation is according to US legislation, but the general point remains: according to the law as it stands, practically every user of the Internet is liable for millions of pounds of copyright infringement each year. That's not just an absurd situation, it's a dangerous one for society, since it has led online users—particularly young ones—to ignore and even despise a law that is so completely out of step with what they and millions of other people do every time they go online.

The situation has arisen because copyright was conceived three hundred years ago, for an analogue world where creations were scarce and copying was easy to police—it's hard to hide a printing press. Today, creativity is no longer the preserve of a special class of artists: everyone online does it all the time as they send messages, upload videos to YouTube, and comment on articles such as this one.

Ultimately, copyright is not fit for the digital age, and what Tehranian called the "law/norm" gap—the difference between what the law says, and what people do—has become such a gaping chasm that even the slow-moving and cautious European Commission has recognised that something must be done. That's the easy part, though; actually agreeing on how exactly to update the existing EU copyright directive "on the harmonisation of certain aspects of copyright and related rights in the information society," which dates from 2001, is much harder.

Real copyright reform is difficult because the copyright industries (publishers, rightsholder associations, etc.) have grown accustomed to laws always being changed in their favour, as shown by the repeated extension of copyright's basic duration from the original 14 years in 1710 to today's life-plus-70 years. The idea that online users might need—and have a right—to new flexibilities in digital copyright is anathema to the publishing, music, and film-making industries, which have fought tooth and nail against every attempt to update laws in these areas.